HomeMy WebLinkAboutAgenda Report - August 16, 2017 I-06TM
CITY OF LODI
COUNCIL COMMUNICATION
AGENDA TITLE:
MEETING DATE:
PREPARED BY:
AGENDA ITEM
Ib
Introduce Ordinance Amending Lodi Municipal Code Title 9 — Public Peace, Morals
and Welfare — by Adding Chapter 9.32 "Shopping Carts"
August 16, 2017
City Attorney and Community Development
RECOMMENDED ACTION:
BACKGROUND INFORMATION:
Introduce ordinance adding Lodi Municipal Code Chapter 9.32
"Shopping Carts" to establish performance standards for retail
businesses that provide shopping carts for use by customers and
prohibits the removal and abandonment of shopping carts.
Lost and abandoned shopping carts create a nuisance by impeding
vehicle traffic, pedestrian travel, blocking ADA access, causing
visual blight, burdening City resources when the City is required to
collect and store the shopping carts.
Cities are limited by state and federal laws in their ability to collect and retrieve abandoned shopping
carts. City enforcement officers are subject to constitutional due process and search and seizure
requirements for shopping carts that are located on private property or contain personal possessions. In
addition, the retrieval of specifically labeled shopping carts by local governments was deemed a matter of
statewide concern with the enactment of California Business and Professions Code section 22435.7 in
1996.
Under existing state law, the City cannot issue citations or impound abandoned shopping carts unless the
cart has a sign permanently affixed to it that identifies the owner of the cart or the retailer, or both; notifies
the public of the procedure to be utilized for authorized removal of the cart from the premises; notifies the
public that the unauthorized removal of the cart from the premises or parking area of the retail
establishment, or the unauthorized possession of the cart, is a violation of state law; and lists a valid
telephone number or address for returning the cart removed from the premises or parking area to the
owner or retailer. Currently, the City has no requirement that shopping carts be labeled according to state
law, so many of the stolen or abandoned shopping carts are not labeled in a manner that allows officers
to enforce state law.
Staff held a community meeting on shopping cart issues and potential regulatory solutions on October
25, 2016. The meeting was publicly noticed and staff distributed personal notice to retailers. Members of
the community including City Council members, Planning Commissioners, and homeless committee
members attended and provided input. Staff held another publicly noticed City Council shirtsleeve
meeting on December 20, 2016 where the same issues were presented and direction was given to move
forward with the proposed ordinance. Staff held another community meeting to discuss a draft ordinance
on July 26, 2017, and received additional public comment and input.
APPROVED:
Manager
The proposed ordinance seeks to fill the gaps between state and local laws and address current short-
comings in the law by requiring retailers to better manage their carts. The proposed ordinance requires
retailers to do the following:
1. Ensure that shopping carts located off a business premises, without written consent, are
retrieved within 24 hours of receiving notice of a complaint by members of the public or the
City and not fail to retrieve such carts within 24 hours of receiving notice more than 12 times in
a calendar year;
2. Have a cart retrieval program in place that is able to retrieve lost, stolen, or abandoned carts
and respond to complaints from the public or City in a manner that results in the retrieval of
the carts within 24 hours of notice;
3. Provide the Community Development Director with a plan for the retrieval of lost, stolen, or
abandoned carts by employees, or provide evidence of a contract for cart retrieval services;
4. Inspect shopping carts to ensure that they are in good working order, contain proper
identification signage, and are sanitized prior to customer use;
5. Ensure that all shopping carts are locked or otherwise secured when the retail establishment
is not open for business;
6. Label all shopping carts with permanently affixed signage complying with the California
Business and Professions Code requirements; and
7. Install removal warning signs at all business entrances and exits.
The proposed ordinance also provides for payment of a regulatory fee to recover the costs of
administering the ordinance and ensuring compliance.
The proposed ordinance may be enforced pursuant to the existing administrative enforcement
proceedings as set forth in Chapter 1.10 of the Lodi Municipal Code. This procedure ensures that a
business or person accused of violating the proposed ordinance is provided with due process and an
opportunity to appeal the decision before an administrative enforcement officer.
In addition, the ordinance may be actively enforced when a business or person fails to comply with the
ordinance and subsequent notices to correct violations. Violations of the ordinance are deemed a
nuisance which may be abated by the City through a public hearing before the City Council.
If the City Council finds the business or person to be causing a nuisance, as the result of violations of the
ordinance, it may abate the nuisance by requiring the business or person to implement an on-site
retention system composed of one or more of the following:
1. Mechanical disabling devices on all shopping carts, which prevent the cart from being
removed from the business premises by locking the wheels automatically or otherwise
preventing movement of the carts off of the business premises.
2. On-site security staff to prevent customers from removing carts from the business premises.
3. Bollards and/or other barriers around the business premises to prevent cart removal, subject
to compliance with all laws and approval of the City's fire marshal and Community
Development Department.
4. A system requiring a security deposit from customers for the use of shopping carts on the
business premises.
5. Restricting use of carts outside the building of the retail establishment unless accompanied by
an employee.
6. The rental or sale of carts that can be temporarily or permanently used for the transport of
purchased merchandize.
7 Any other measures recommended by the Community Development Director as a means of
preventing carts from being unlawfully removed from the business premises.
The proposed ordinance also imposes restrictions on individual conduct by making it a misdemeanor for
a person to remove, abandon, and possess shopping carts without the written permission of the owner.
FISCAL IMPACT: Not Applicable.
FUNDING AVAILABLE: Not applicable.
Joh . I ukasawa
De uty City Attorney
Craig Hoffman
City Planner
ORDINANCE NO.
AN ORDINANCE OF THE LODI CITY COUNCIL
AMENDING LODI MUNICIPAL CODE TITLE 9 — PUBLIC
PEACE, MORALS AND WELFARE, BY ADDING CHAPTER
9.32 "SHOPPING CARTS"
BE IT ORDAINED BY THE LODI CITY COUNCIL AS FOLLOWS:
Section 1. Lodi Municipal Code Title 9 Public Peace, Morals and Welfare, is hereby
amended by adding Chapter 9.32 — Shopping Carts, and shall read as follows:
Chapter 9.32
SHOPPING CARTS
Sections
Article 1. Retail Establishment Shopping Cart Standards
9.32.010 Findings.
9.32.020 Definitions.
9.32.030 General Shopping Cart Standards.
9.32.040 Shopping Carts Must Be Retrieved Within 24 Hours.
9.32.050 Shopping Cart Retrieval Program Required.
9.32.060 Shopping Carts Must Be Secured After Business Hours.
9.32.070 Shopping Cart Identification Signage Required.
9.32.080 Cart Retrieval Plan Required.
9.32.090 Business Warning Signs Required.
9.32.100 Employee Training Required.
9.32.110 Shopping Cart Regulatory Fee.
9.32.120 Administrative Enforcement.
9.32.130 Administrative Abatement Hearing.
9.32.140 Administrative Abatement Remedies.
Article 2. Prohibited Conduct
9.32.150 Unlawful to Abandon Shopping Carts.
9.32.160 Unlawful to Possess Shopping Cart Without Permission.
9.32.170 Penalties.
Article 1. Retail Establishment Shopping Cart Standards
9.32.010 Findings.
A. The City Council finds and determines that shopping carts are removed and stolen from
businesses and are abandoned throughout the city.
B. Shopping carts that have been removed, stolen, and abandoned present a threat to the
public health and safety by obstructing pedestrian and vehicular traffic, creating blight, and
resulting in the loss of personal property.
C. Stolen shopping carts are the result of theft and contribute to the perception of
community blight in areas where they are abandoned and may encourage other crimes and
reduce property values.
1
D. The City Council finds and declares that removed, stolen, and abandoned shopping
carts constitute a nuisance.
E. In enacting this chapter, the City Council has been mindful of the preemptive effect of
state law, in particular Business and Professions Code Sections 22435, et seq., (the State of
California Shopping Cart laws) and, in reliance upon Business and Professions Code Section
22435.8, this chapter avoids any express conflict with state law.
F. The provisions of this ordinance are intended to complement the State of California
Shopping Cart laws.
G. Nothing in this Chapter shall be deemed to prevent the city from instituting any
appropriate legal procedures to abate, correct, enjoin or restrain any violation of this Chapter,
including civil or criminal proceedings.
H. The remedies and relief provided in this Article 2 shall be cumulative and in addition to
any and all other remedies available to the city under this code and state law.
9.32.020 Definitions.
A. "Business Premises" means the premises or parking area of a Retail Establishment,
including adjacent walkways, any loading area, and the parking area which shall include a
parking lot or other property provided by a Retail Establishment for use by a customer for
parking an automobile or other vehicle.
B. "Director" means the Community Development Director.
C. "Enforcement Officer" means the City Manager or designee, and Chief of Police or
designee.
D. "Removed Shopping Cart" means a Shopping Cart that has been removed from the
Business Premises of the owner or lessee of the Shopping Cart without permission.
E. "Retail Establishment" means a business, property, or legal entity located within a
commercial, mixed use, or overlay zoning district, that provides or makes available Shopping
Carts to its customers for use on its Business Premises.
F "Sanitized" means one or more of the following measures:
1. Use of onsite Shopping Cart cleaning and sanitizing systems;
2. Pressure washing;
3. Steam cleaning;
4. Availability of Shopping Cart sanitization stations for customer use;
5. Availability of Shopping Cart liners for customer use or purchase; and
6. Any other measure approved by the Community Development Director as a
means of cleaning, sanitizing, or eliminating exposure to contaminants that may
be found on Shopping Carts.
2
G. "Shopping Cart" means a basket that is mounted on wheels or a similar device generally
used in a Retail Establishment by a customer for the purpose of transporting goods of any kind.
Shopping Cart does not include a Shopping Cart sold to, or owned by a customer for his or her
own personal use.
H. "Shopping Cart Activity" means the act of providing, or making available, Shopping Carts
to the public for use on the Business Premises of a Retail Establishment. "Shopping Cart
Activity" does not include the business activities of Shopping Cart sales, storage, or retrieval.
"Shopping Cart Identification Signage" means signage that is permanently affixed or
engraved to the surface of a Shopping Cart and provides the following information, as set forth
in Business and Professions Code Section 22435.1:
1 The identity of the Retail Establishment, or owner or lessee of the Shopping Cart,
or both;
Notification to the public of the procedure to be utilized for authorized removal of
a Shopping Cart from the Business Premises;
3. Notification to the public that the unauthorized removal of a Cart from the
Business Premises of a Retail Establishment, or the unauthorized possession of
a Shopping Cart, is a violation of state law; and
A valid telephone number and/or address which can be used to return Shopping
Carts that have been removed from the Retail Establishment.
J. "Unmarked Shopping Cart" means a Shopping Cart that is not marked with Shopping
Cart Identification Signage as set forth in Business and Professions Code Section 22435.1 and
defined in this Chapter.
9.32.030 General Shopping Cart Standards.
A. A Retail Establishment's Shopping Cart Activity shall not cause or result in adverse effects
on the health, welfare, peace or safety of persons residing or working in the City.
B. A Retail Establishment's Shopping Cart Activity shall not result in repeated nuisance
activities within the City, including but not limited to, Removed Carts, litter, vandalism, visual
blight, impeded or obstructed pedestrian or vehicle travel or interference with ADA access.
C. A Retail Establishment's use of Shopping Carts shall comply with all provisions of local,
state and federal laws, regulations and orders, including but not limited to California Business
and Professions Code Section 22435 et seq., as well as any condition imposed on any permit
issued pursuant to applicable laws, regulations or orders. This includes compliance with annual
City license and regulatory fees.
D. A' Retail Establishment's use of Shopping Carts shall be compatible with, and not
adversely affect the livability or appropriate development of abutting properties, the surrounding
neighborhood, and the City.
9.32.040 Shopping Carts Must Be Retrieved Within 24 Hours.
A. Retail Establishments shall ensure that all Removed Carts are retrieved within 24 hours of
receiving notice of a complaint by any person or entity.
3
B. Retail Establishments shall not fail to retrieve their Removed Carts within 24 hours of
receiving notice of a complaint by any person or entity, more than 12 times in a calendar year.
9.32.050 Shopping Cart Retrieval Program Required.
A. All Retail Establishments shall have a Shopping Cart retrieval program in place that will
retrieve Removed Carts and respond to complaints from the public or City in a manner that
results in the retrieval of Removed Carts within 24 hours of notice.
B. All Shopping Carts shall be inspected to ensure that they are in good working order,
have Cart Identification Signage, and are Sanitized prior to customer use.
9.32.060 Shopping Carts Must Be Secured After Business Hours.
All Shopping Carts shall be locked or otherwise secured when a Retail Establishment providing
such Shopping Carts is not open for business.
9.32.070 Shopping Cart Identification Signage Required.
A. Every Shopping Cart owned or used within the City by a Retail Establishment shall have
clearly visible Shopping Cart Identification Signage permanently affixed to the Shopping Cart.
Shopping Cart Identification Signage shall be continuously maintained so that all required
information is accurate, up to date, and clearly legible.
B. A Retail Establishment shall not offer or provide an Unmarked Shopping Cart for use by
its customers or the public.
9.32.080 Cart Retrieval Plan Required.
Every Retail Establishment shall prepare, submit, and implement, a specific written plan to
prevent their respective customers from removing Shopping Carts from the Retail Establishment
and to retrieve any Shopping Carts that have been removed therefrom. The plan must provide
for the retrieval of Removed Shopping Carts by its employees, or provide evidence of a contract
with a Shopping Cart retrieval service as defined in California Business and Professions Code
Section 22435.10. The plan must be provided to, and approved by, the Director, whenever a
Retail Establishment makes revisions to a plan, the revised plan must be submitted to the
Director for approval.
9.32.090 Business Warning Signs Required.
All Retail Establishments that furnish or make available Shopping Carts for use by customers
shall post removal warning signage at all entrances to the business consisting of signage or text
that is at least 18 inches in width and 24 inches in height using block lettering not less than one-
half inch in width and two inches in height containing a statement to the effect that the
unauthorized removal of a Shopping Cart from a Retail Establishment, or unauthorized
possession of a Shopping Cart in a location other than the Business Premises of the Retail
Establishment, is a violation of state law and city ordinance.
9.32.100 Employee Training Required.
Retail Establishments shall conduct regular and ongoing employee training to educate new and
existing employees about procedures to prevent unauthorized Shopping Cart removal from the
Business Premises, including, but not limited to, the operation of any on-site Shopping Cart
retention system.
4
9.32.110 Shopping Cart Regulatory Fee.
A. The intent and purpose of this Section is to impose a regulatory fee on all Retail
Establishments that use or provide Shopping Carts subject to this ordinance after the effective
date of this ordinance. This fee shall provide for the enforcement and regulation of the
applicable regulations set forth in this Chapter.
B. The annual Shopping Cart regulatory fee may be established from time to time by
resolution of the City Council. The fee shall be calculated so as to recover the total cost of both
administration and enforcement of the applicable regulations set forth in this Chapter, including,
for example, administering the program, inspection and compliance checks, documentation of
violations, conducting administrative hearings and criminal prosecution of violators, but shall not
exceed the cost of the total program.
9.32.120 Administrative Enforcement.
Article 1 of this Chapter may be enforced administratively as set forth in Lodi Municipal Code
Chapter 1.10. In determining whether a Retail Establishment has violated the Shopping Cart
Standards as set forth in this Chapter of the Lodi Municipal Code, or as to the appropriateness
of corrective actions, the Enforcement Officer and administrative hearing officer may consider:
1. The length of time the Retail Establishment has been out of compliance with
Shopping Cart Standards.
2. The impact of the violation of the Shopping Cart Standards on the community.
3. Any information regarding the Retail Establishment's efforts to remedy the
violation(s) of the Shopping Cart Standards, including, but not limited to:
a Calls to an Enforcement Officer by the Retail Establishment or its
employees, or agents.
b. Requesting that persons engaging in activities causing violations of the
Shopping Cart Standards cease those activities, unless the Retail
Establishment, or its employees or agents feel that their personal safety
would be threatened by making that request.
c. Improvements made to the Retail Establishment's Business Premises or
operations, including but not limited to voluntary installation of an on-site
Shopping Cart retention system.
9.32.130 Administrative Abatement Hearing.
The City Council finds that a violation of Article 1 of this Chapter is a public nuisance. The City
may abate violations as set forth in Lodi Municipal Code Chapter 1.10, except that the following
hearing procedures shall apply:
A. Businesses or persons subject to abatement shall be served with an abatement notice
as set forth in Lodi Municipal Code Section 1.10.310.
B. Once the Director follows the procedures set forth in Lodi Municipal Code Section
1.10.310 and reasonable time for compliance has lapsed and the violations remain, and the
citee has failed to take corrective actions to the remedy the nuisance, the matter may be set for
an administrative abatement hearing.
5
C. The Director shall set the matter for public hearing before the City Council.
D. Written notice of the meeting shall be served at least 30 calendar days prior to the date
of the hearing by posting a copy of the notice in a conspicuous place on or near the property
and mailing copies of the notice by first class mail to the property address, current owner, and
corporate headquarters or agent for service of process, if any.
E. Notice of the hearing shall include:
1. The date, time, and location of the hearing;
2. References to all code sections violated and descriptions of how each section is or
' has been violated;
3. References to the dates and locations of the violations;
4. A description of the consequences of failing to attend the hearing and comply;
5. A description of the hearing procedures and explanation of the right to present
witnesses and evidence; and
6. Explanation and notice of post -hearing appeal rights and procedures.
F. The hearing shall be governed by the procedural rules set forth in Lodi Municipal Code
Section 1.10.480.
G. The City Council shall hear the evidence presented to determine whether, more likely
than not, there has been a violation of the Shopping Cart Standards set forth in Lodi Municipal
Code Section 9.32.030 such that a nuisance has been created.
H. If the City Council finds by majority vote of the council members present that a nuisance
has been created, the City Council shall direct the City Manager to issue an administrative
order, as set forth in Lodi Municipal Code Section 1.10.500, setting forth the findings as stated
in the record of the hearing and ordering the payment of any fines and/or the imposition of any
remedies as set forth in Lodi Municipal Code Section 9.32.140, and a reasonable deadline for
compliance.
Notwithstanding the provisions provided herein, all other provisions in Lodi Municipal
Code Chapter 1.10 shall apply.
9.32.140 Administrative Abatement Remedies.
A Retail Establishment that has failed to comply with the Shopping Cart Standards set forth in
this Chapter of the Lodi Municipal Code and has caused a nuisance may be required to abate
such nuisance by implementing an on-site Shopping Cart retention system consisting of one or
more of the following measures:
A. Mechanical or electronic disabling devices on all Shopping Carts, which prevent the
Shopping Cart from being removed from the Business Premises by locking the wheels
automatically or otherwise preventing movement of the Shopping Carts off of the Business
Premises.
B. On-site security staff to prevent customers from removing Shopping Carts from the
Business Premises.
6
C. Bollards and/or other physical barriers around the Business Premises to prevent
Shopping Cart removal, subject to compliance with all laws and approval of the City's Fire
Marshal and Community Development Department.
D. A system requiring a security deposit from customers for the use of Shopping Carts on
the Business Premises.
E. Restricting the use of Shopping Carts outside the building of the Retail Establishment
unless accompanied by an employee.
F. The rental or sale of Shopping Carts that can be temporarily or permanently used for the
transport of purchased merchandize.
G. Any other measures recommended by the Director as a means of preventing Shopping
Carts from being unlawfully removed from the Business Premises.
A nuisance created under Article 1 of this Chapter may also be abated by the imposition of
administrative fines as set forth in Section 1.10.260 of the Lodi Municipal Code.
The abatement remedies imposed shall be proportional to the nature and extent of the
nuisance.
Article 2. Prohibited Conduct.
9.32.150 Unlawful to Abandon Shopping Carts.
It is unlawful for any person, or an agent thereof, to leave or abandon a Shopping Cart, or allow
to be left or abandoned a Shopping Cart, upon any sidewalk, street, or other public place, or
upon any private property, other than the Business Premises of the Retail Establishment owning
or offering the Shopping Cart for use.
9.32.160 Unlawful to Possess Shopping Cart Without Permission.
Any person in possession of a Shopping Cart outside the Business Premises of the Retail
Establishment owning or offering the Shopping Cart for use without the 'express prior written
approval of the owner, unless the person is in the process of immediately returning the
Shopping Cart to the owner, shall be guilty of a misdemeanor. Written permission to remove a
Shopping Cart shall be valid for a period not to exceed 72 consecutive hours.
9.32.170 Penalties.
A. Any person violating this Article 2 shall be guilty of a misdemeanor and may be subject
to the penalties set forth in Lodi Municipal Code Chapter 1.08.
B. Each day a person is in violation of this Article 2 shall be considered a separate
violation.
Section 2. No Mandatory Duty of Care. This ordinance is not intended to and shall not be
construed or given effect in a manner which imposes upon the City, or any officer or employee
thereof, a.mandatory duty of care towards persons or property within the City or outside of the
City so as to provide a basis of civil liability for damages, except as otherwise imposed by law.
Section 3. Severability. If any provision of this ordinance or the application thereof to any
person or circumstances is held invalid, such invalidity shall not affect other provisions or
applications of the ordinance which can be given effect without the invalid provision or
7
application. To this end, the provisions of this ordinance are severable. The City Council
hereby declares that it would have adopted this ordinance irrespective of the invalidity of any
particular portion thereof.
Section 4. All ordinances and parts of ordinances in conflict herewith are repealed insofar
as such conflict may exist.
Section 5. Effective Date and Publication. This Ordinance shall take effect thirty (30) days
after its adoption. In lieu of publication of the full text of the ordinance within fifteen (15) days
after its passage, a summary of the ordinance may be published at least five (5) days prior to
and fifteen (15) days after adoption by the City Council, and a certified copy shall be posted in
the office of the City Clerk pursuant to Government Code section 36933(c)(1).
Approved this day of _ , 2017
DOUG KUEHNE
Mayor
Attest:
JENNIFER M. FERRAIOLO
City Clerk
State of California
County of San Joaquin, ss.
I, Jennifer M. Ferraiolo, City Clerk of the City of Lodi, do hereby certify that Ordinance No.
was introduced at a regular meeting of the City Council of the City of Lodi held August 16, 2017,
and was thereafter passed, adopted, and ordered to print at a regular meeting of said Council
held , 2017, by the following vote
AYES: COUNCIL MEMBERS -
NOES: COUNCIL MEMBERS -
ABSENT: COUNCIL MEMBERS -
ABSTAIN: COUNCIL MEMBERS -
1 further certify that Ordinance No. was approved and signed by the Mayor on the
date of its passage and the same has been published pursuant to law.
Approved as to Form:
JOHN P. FUKASAWA
Deputy City Attorney • .
8
JENNIFER M. FERRAIOLO
City Clerk
Please immediately confirm receipt
of this fax by calling 333-6702
CITY OF LODI
P. O. BOX 3006
LODI, CALIFORNIA 95241-1910
ADVERTISING INSTRUCTIONS
SUBJECT: SUMMARY OF ORDINANCE NO. 1945 AND NO. 1946
PUBLISH DATE: SATURDAY, AUGUST 19, 2017
LEGAL AD
TEAR SHEETS WANTED: One (1) please
SEND AFFIDAVIT AND BILL TO:
LNS ACCT. #0510052
JENNIFER M. FERRAIOLO, CITY CLERK
City of Lodi
P.O. Box 3006
Lodi, CA 95241-1910
DATED: THURSDAY, AUGUST 17, 2017
ORDERED BY: JENNIFER M. FERRAIOLO
CITY CLERK
PAMELA M. FARRIS
DEPUTY CITY CLERK
ELIZABETH BURGOS
ADMINISTRATIVE CLERK
Verify Appearance of this Legal in the Newspaper — Copy to File
SEND PROOF OF ADVERTISEMENT. TIIL1. '!f YOU! r
Emailed to the Sentinel at krystals@lodinews.com at 7: 32 (time) on 9f 17//7 (date) (pages)
LNS Phoned to confirm receipt of all pages at (time) _PM ES (initials)
N:\Administration\CLERK\OrdSu mmaries\Advins. doc
CITY OF LODI
ORDINANCE NO. 1945
AN ORDINANCE OF THE LODI CITY COUNCIL AMENDING LODI MUNICIPAL CODE TITLE
15 — BUILDINGS AND CONSTRUCTION — BY ADDING CHAPTER 15.15, "ELECTRIC
VEHICLE CHARGING STATION STREAMLINED PERMITTING PROCESS." The purpose of
this ordinance is to comply with Government Code Section 65850.7 to achieve timely and cost-
effective installations of electric vehicle charging stations. Introduced August 2, 2017. Adopted
August 16, 2017, and effective September 15, 2017. AYES: Chandler, Johnson, Mounce,
Nakanishi, and Mayor Kuehne; NOES: None; ABSENT: None.
ORDINANCE NO. 1946
AN ORDINANCE OF THE LODI CITY COUNCIL AMENDING LODI MUNICIPAL CODE
TITLE 9 — PUBLIC PEACE, MORALS AND WELFARE — BY ADDING CHAPTER 9.32,
"SHOPPING CARTS." The purpose of this ordinance is to establish performance standards for
retail businesses that provide shopping carts for use by customers and prohibits the removal
and abandonment of shopping carts. Introduced August 16, 2017. Adoption to be considered
September 6, 2017. AYES: Chandler, Johnson, Mounce, Nakanishi, and Mayor Kuehne; NOES:
None; ABSENT: None.
Jennifer M. Ferraiolo, City Clerk
City of Lodi
August 16, 2017
Certified copies of the full text of these ordinances are available in the office of the
Lodi City Clerk.
DECLARATION OF POSTING
ORDINANCE NO. 1946
AN ORDINANCE OF THE LODI CITY COUNCIL AMENDING LODI MUNICIPAL
CODE TITLE 9 — PUBLIC PEACE, MORALS AND WELFARE — BY ADDING
CHAPTER 9.32, "SHOPPING CARTS"
On Thursday, August 17, 2017, in the City of Lodi, San Joaquin County, California, a
certified copy of Ordinance No. 1946 (attached hereto, marked Exhibit "A") was posted
in the Lodi City Clerk's Office.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on August 17, 2017, at Lodi, California.
-e liCil V2713:21-44:2
Pamela M. Farris
Deputy City Clerk
ordsummaries\aaDecPost.doc
ORDERED BY:
JENNIFER M. FERRAIOLO
CITY CLERK
Elizabeth Burgos
Administrative Clerk
ORDINANCE NO. 1946
AN ORDINANCE OF THE LODI CITY COUNCIL
AMENDING LODI MUNICIPAL CODE TITLE 9 — PUBLIC
PEACE, MORALS AND WELFARE — BY ADDING
CHAPTER 9.32, "SHOPPING CARTS"
BE IT ORDAINED BY THE LODI CITY COUNCIL AS FOLLOWS:
Section 1 Lodi Municipal Code Title 9 Public Peace, Morals and Welfare, is hereby
amended by adding Chapter 9.32 — Shopping Carts, and shall read as follows:
Chapter 9.32
SHOPPING CARTS
Sections:
Article 1. Retail Establishment Shopping Cart Standards
9.32.010 Findings.
9.32.020 Definitions.
9.32.030 General Shopping Cart Standards.
9.32.040 Shopping Carts Must Be Retrieved Within 24 Hours.
9.32.050 Shopping Cart Retrieval Program Required.
9.32.060 Shopping Carts Must Be Secured After Business Hours.
9.32.070 Shopping Cart Identification Signage Required.
9.32.080 Cart Retrieval Plan Required.
9.32.090 Business Warning Signs Required.
9.32.100 Employee Training Required.
9.32.110 Shopping Cart Regulatory Fee.
9.32.120 Administrative Enforcement.
9.32.130 Administrative Abatement Hearing.
9.32.140 Administrative Abatement Remedies.
Article 2. Prohibited Conduct
9.32.150 Unlawful to Abandon Shopping Carts.
9.32.160 Unlawful to Possess Shopping Cart Without Permission.
9.32.170 Penalties.
Article 1. Retail Establishment Shopping Cart Standards
9.32.010 Findings.
A. The City Council finds and determines that shopping carts are removed and stolen from
businesses and are abandoned throughout the city.
B. Shopping carts that have been removed, stolen, and abandoned present a threat to the
public health and safety by obstructing pedestrian and vehicular traffic, creating blight, and
resulting in the Toss of personal property.
C. Stolen shopping carts are the result of theft and contribute to the perception of
community blight in areas where they are abandoned and may encourage other crimes and
reduce property values.
1
D. The City Council finds and declares that removed, stolen, and abandoned shopping
carts constitute a nuisance.
E. In enacting this chapter, the City Council has been mindful of the preemptive effect of
state law, in particular Business and Professions Code Sections 22435, et seq., (the State of
California Shopping Cart laws) and, in reliance upon Business and Professions Code Section
22435.8, this chapter avoids any express conflict with state law.
F. The provisions of this ordinance are intended to complement the State of California
Shopping Cart laws.
G. Nothing in this Chapter shall be deemed to prevent the city from instituting any
appropriate legal procedures to abate, correct, enjoin or restrain any violation of this Chapter,
including civil or criminal proceedings.
H. The remedies and relief provided in this Article 2 shall be cumulative and in addition to
any and all other remedies available to the city under this code and state law.
9.32.020 Definitions.
A. "Business Premises" means the premises or parking area of a Retail Establishment,
including adjacent walkways, any loading area, and the parking area which shall include a
parking lot or other property provided by a Retail Establishment for use by a customer for
parking an automobile or other vehicle.
B. "Director" means the Community Development Director.
C. "Enforcement Officer" means the City Manager or designee, and Chief of Police or
designee.
D. "Removed Shopping Cart" means a Shopping Cart that has been removed from the
Business Premises of the owner or lessee of the Shopping Cart without permission.
E. "Retail Establishment" means a business, property, or legal entity located within a
commercial, mixed use, or overlay zoning district, that provides or makes available Shopping
Carts to its customers for use on its Business Premises.
F. "Sanitized" means one or more of the following measures:
1. Use of onsite Shopping Cart cleaning and sanitizing systems;
2. Pressure washing;
3. Steam cleaning;
4. Availability of Shopping Cart sanitization stations for customer use;
5. Availability of Shopping Cart liners for customer use or purchase; and
6. Any other measure approved by the Community Development Director as a
means of cleaning, sanitizing, or eliminating exposure to contaminants that may
be found on Shopping Carts.
2
G. "Shopping Cart" means a basket that is mounted on wheels or a similar device generally
used in a Retail Establishment by a customer for the purpose of transporting goods of any kind.
Shopping Cart does not include a Shopping Cart sold to, or owned by a customer for his or her
own personal use.
H. "Shopping Cart Activity" means the act of providing, or making available, Shopping Carts
to the public for use on the Business Premises of a Retail Establishment. "Shopping Cart
Activity" does not include the business activities of Shopping Cart sales, storage, or retrieval.
I. "Shopping Cart Identification Signage" means signage that is permanently affixed or
engraved to the surface of a Shopping Cart and provides the following information, as set forth
in Business and Professions Code Section 22435.1:
1. The identity of the Retail Establishment, or owner or lessee of the Shopping Cart,
or both;
2. Notification to the public of the procedure to be utilized for authorized removal of
a Shopping Cart from the Business Premises;
3. Notification to the public that the unauthorized removal of a Cart from the
Business Premises of a Retail Establishment, or the unauthorized possession of
a Shopping Cart, is a violation of state law; and
4. A valid telephone number and/or address which can be used to return Shopping
Carts that have been removed from the Retail Establishment.
J. "Unmarked Shopping Cart" means a Shopping Cart that is not marked with Shopping
Cart Identification Signage as set forth in Business and Professions Code Section 22435.1 and
defined in this Chapter.
9.32.030 General Shopping Cart Standards.
A. A Retail Establishment's Shopping Cart Activity shall not cause or result in adverse
effects on the health, welfare, peace or safety of persons residing or working in the City.
B. A Retail Establishment's Shopping Cart Activity shall not result in repeated nuisance
activities within the City, including but not limited to, Removed Carts, litter, vandalism, visual
blight, impeded or obstructed pedestrian or vehicle travel or interference with ADA access.
C. A Retail Establishment's use of Shopping Carts shall comply with all provisions of local,
state and federal laws, regulations and orders, including but not limited to California Business
and Professions Code Section 22435 et seq., as well as any condition imposed on any permit
issued pursuant to applicable laws, regulations or orders. This includes compliance with annual
City license and regulatory fees.
D. A Retail Establishment's use of Shopping Carts shall be compatible with, and not
adversely affect the livability or appropriate development of abutting properties, the surrounding
neighborhood, and the City.
9.32.040 Shopping Carts Must Be Retrieved Within 24 Hours.
A. Retail Establishments shall ensure that all Removed Carts are retrieved within 24 hours
of receiving notice of a complaint by any person or entity.
3
B. Retail Establishments shall not fail to retrieve their Removed Carts within 24 hours of
receiving notice of a complaint by any person or entity, more than 12 times in a calendar year.
9.32.050 Shopping Cart Retrieval Program Required.
A. All Retail Establishments shall have a Shopping Cart retrieval program in place that will
retrieve Removed Carts and respond to complaints from the public or City in a manner that
results in the retrieval of Removed Carts within 24 hours of notice.
B. All Shopping Carts shall be inspected to ensure that they are in good working order,
have Cart Identification Signage, and are Sanitized prior to customer use.
9.32.060 Shopping Carts Must Be Secured After Business Hours.
All Shopping Carts shall be locked or otherwise secured when a Retail Establishment providing
such Shopping Carts is not open for business.
9.32.070 Shopping Cart Identification Signage Required.
A. Every Shopping Cart owned or used within the City by a Retail Establishment shall have
clearly visible Shopping Cart Identification Signage permanently affixed to the Shopping Cart.
Shopping Cart Identification Signage shall be continuously maintained so that all required
information is accurate, up to date, and clearly legible.
B. A Retail Establishment shall not offer or provide an Unmarked Shopping Cart for use by
its customers or the public.
9.32.080 Cart Retrieval Plan Required.
Every Retail Establishment shall prepare, submit, and implement, a specific written plan to
prevent their respective customers from removing Shopping Carts from the Retail Establishment
and to retrieve any Shopping Carts that have been removed therefrom. The plan must provide
for the retrieval of Removed Shopping Carts by its employees, or provide evidence of a contract
with a Shopping Cart retrieval service as defined in California Business and Professions Code
Section 22435.10. The plan must be provided to, and approved by, the Director, whenever a
Retail Establishment makes revisions to a plan, the revised plan must be submitted to the
Director for approval.
9.32.090 Business Warning Signs Required.
All Retail Establishments that furnish or make available Shopping Carts for use by customers
shall post removal warning signage at all entrances to the business consisting of signage or text
that is at least 18 inches in width and 24 inches in height using block lettering not less than one-
half inch in width and two inches in height containing a statement to the effect that the
unauthorized removal of a Shopping Cart from a Retail Establishment, or unauthorized
possession of a Shopping Cart in a location other than the Business Premises of the Retail
Establishment, is a violation of state law and city ordinance.
9.32.100 Employee Training Required.
Retail Establishments shall conduct regular and ongoing employee training to educate new and
existing employees about procedures to prevent unauthorized Shopping Cart removal from the
Business Premises, including, but not limited to, the operation of any on-site Shopping Cart
retention system.
4
9.32.110 Shopping Cart Regulatory Fee.
A. The intent and purpose of this Section is to impose a regulatory fee on all Retail
Establishments that use or provide Shopping Carts subject to this ordinance after the effective
date of this ordinance. This fee shall provide for the enforcement and regulation of the
applicable regulations set forth in this Chapter.
B. The annual Shopping Cart regulatory fee may be established from time to time by
resolution of the City Council. The fee shall be calculated so as to recover the total cost of both
administration and enforcement of the applicable regulations set forth in this Chapter, including,
for example, administering the program, inspection and compliance checks, documentation of
violations, conducting administrative hearings and criminal prosecution of violators, but shall not
exceed the cost of the total program.
9.32.120 Administrative Enforcement.
Article 1 of this Chapter may be enforced administratively as set forth in Lodi Municipal Code
Chapter 1.10. In determining whether a Retail Establishment has violated the Shopping Cart
Standards as set forth in this Chapter of the Lodi Municipal Code, or as to the appropriateness
of corrective actions, the Enforcement Officer and administrative hearing officer may consider:
1. The length of time the Retail Establishment has been out of compliance with
Shopping Cart Standards.
2. The impact of the violation of the Shopping Cart Standards on the community.
3. Any information regarding the Retail Establishment's efforts to remedy the
violation(s) of the Shopping Cart Standards, including, but not limited to:
a. Calls to an Enforcement Officer by the Retail Establishment or its
employees, or agents.
Requesting that persons engaging in activities causing violations of the
Shopping Cart Standards cease those activities, unless the Retail
Establishment, or its employees or agents feel that their personal safety
would be threatened by making that request.
c. Improvements made to the Retail Establishment's Business Premises or
operations, including but not limited to voluntary installation of an on-site
Shopping Cart retention system.
9.32.130 Administrative Abatement Hearing.
The City Council finds that a violation of Article 1 of this Chapter is a public nuisance. The City
may abate violations as set forth in Lodi Municipal Code Chapter 1.10, except that the following
hearing procedures shall apply:
A. Businesses or persons subject to abatement shall be served with an abatement notice
as set forth in Lodi Municipal Code Section 1.10.310.
B. Once the Director follows the procedures set forth in Lodi Municipal Code Section
1.10.310 and reasonable time for compliance has lapsed and the violations remain, and the
citee has failed to take corrective actions to the remedy the nuisance, the matter may be set for
an administrative abatement hearing.
5
C. The Director shall set the matter for public hearing before the City Council.
D. Written notice of the meeting shall be served at least 30 calendar days prior to the date
of the hearing by posting a copy of the notice in a conspicuous place on or near the property
and mailing copies of the notice by first class mail to the property address, current owner, and
corporate headquarters or agent for service of process, if any.
E. Notice of the hearing shall include:
1. The date, time, and location of the hearing;
2. References to all code sections violated and descriptions of how each section is or
has been violated;
3. References to the dates and locations of the violations;
4. A description of the consequences of failing to attend the hearing and comply;
5. A description of the hearing procedures and explanation of the right to present
witnesses and evidence; and
6. Explanation and notice of post -hearing appeal rights and procedures.
F. The hearing shall be governed by the procedural rules set forth in Lodi Municipal Code
Section 1.10.480.
G. The City Council shall hear the evidence presented to determine whether, more likely
than not, there has been a violation of the Shopping Cart Standards set forth in Lodi Municipal
Code Section 9.32.030 such that a nuisance has been created.
H. If the City Council finds by majority vote of the Council members present that a nuisance
has been created, the City Council shall direct the City Manager to issue an administrative
order, as set forth in Lodi Municipal Code Section 1.10.500, setting forth the findings as stated
in the record of the hearing and ordering the payment of any fines and/or the imposition of any
remedies as set forth in Lodi Municipal Code Section 9.32.140, and a reasonable deadline for
compliance.
I. Notwithstanding the provisions provided herein, all other provisions in Lodi Municipal
Code Chapter 1.10 shall apply.
9.32.140 Administrative Abatement Remedies.
A Retail Establishment that has failed to comply with the Shopping Cart Standards set forth in
this Chapter of the Lodi Municipal Code and has caused a nuisance may be required to abate
such nuisance by implementing an on-site Shopping Cart retention system consisting of one or
more of the following measures:
A. Mechanical or electronic disabling devices on all Shopping Carts, which prevent the
Shopping Cart from being removed from the Business Premises by locking the wheels
automatically or otherwise preventing movement of the Shopping Carts off of the Business
Premises.
B. On-site security staff to prevent customers from removing Shopping Carts from the
Business Premises.
6
C. Bollards and/or other physical barriers around the Business Premises to prevent
Shopping Cart removal, subject to compliance with all laws and approval of the City's Fire
Marshal and Community Development Department.
D. A system requiring a security deposit from customers for the use of Shopping Carts on
the Business Premises.
E. Restricting the use of Shopping Carts outside the building of the Retail Establishment
unless accompanied by an employee.
F. The rental or sale of Shopping Carts that can be temporarily or permanently used for the
transport of purchased merchandise.
G. Any other measures recommended by the Director as a means of preventing Shopping
Carts from being unlawfully removed from the Business Premises.
A nuisance created under Article 1 of this Chapter may also be abated by the imposition of
administrative fines as set forth in Section 1.10.260 of the Lodi Municipal Code.
The abatement remedies imposed shall be proportional to the nature and extent of the
nuisance.
Article 2. Prohibited Conduct.
9.32.150 Unlawful to Abandon Shopping Carts.
It is unlawful for any person, or an agent thereof, to leave or abandon a Shopping Cart, or allow
to be left or abandoned a Shopping Cart, upon any sidewalk, street, or other public place, or
upon any private property, other than the Business Premises of the Retail Establishment owning
or offering the Shopping Cart for use.
9.32.160 Unlawful to Possess Shopping Cart Without Permission.
Any person in possession of a Shopping Cart outside the Business Premises of the Retail
Establishment owning or offering the Shopping Cart for use without the express prior written
approval of the owner, unless the person is in the process of immediately returning the
Shopping Cart to the owner, shall be guilty of a misdemeanor. Written permission to remove a
Shopping Cart shall be valid for a period not to exceed 72 consecutive hours.
9.32.170 Penalties.
A. Any person violating this Article 2 shall be guilty of a misdemeanor and may be subject
to the penalties set forth in Lodi Municipal Code Chapter 1.08.
B. Each day a person is in violation of this Article 2 shall be considered a separate
violation.
Section 2. No Mandatory Duty of Care. This ordinance is not intended to and shall not be
construed or given effect in a manner which imposes upon the City, or any officer or employee
thereof, a mandatory duty of care towards persons or property within the City or outside of the
City so as to provide a basis of civil liability for damages, except as otherwise imposed by law.
Section 3. Severability. If any provision of this ordinance or the application thereof to any
person or circumstances is held invalid, such invalidity shall not affect other provisions or
applications of the ordinance which can be given effect without the invalid provision or
7
application. To this end, the provisions of this ordinance are severable. The City Council
hereby declares that it would have adopted this ordinance irrespective of the invalidity of any
particular portion thereof.
Section 4. All ordinances and parts of ordinances in conflict herewith are repealed insofar
as such conflict may exist.
Section 5. Effective Date and Publication. This Ordinance shall take effect thirty (30) days
after its adoption. In lieu of publication of the full text of the ordinance within fifteen (15) days
after its passage, a summary of the ordinance may be published at least five (5) days prior to
and fifteen (15) days after adoption by the City Council, and a certified copy shall be posted in
the office of the City Clerk pursuant to Government Code section 36933(c)(1).
Approved this day of , 2017
DOUG KUEHNE
Mayor
Attest:
JENNIFER M. FERRAIOLO
City Clerk
State of California
County of San Joaquin, ss.
I, Jennifer M. Ferraiolo, City Clerk of the City of Lodi, do hereby certify that Ordinance No. 1946
was introduced at a regular meeting of the City Council of the City of Lodi held August 16, 2017,
and was thereafter passed, adopted, and ordered to print at a regular meeting of said Council
held , 2017, by the following vote:
AYES: COUNCIL MEMBERS —
NOES: COUNCIL MEMBERS —
ABSENT: COUNCIL MEMBERS —
ABSTAIN: COUNCIL MEMBERS —
1 further certify that Ordinance No. 1946 was approved and signed by the Mayor on the
date of its passage and the same has been published pursuant to law.
Approved as to Form:
JOHN P. FUKASAWA
Deputy City Attorney
8
JENNIFER M. FERRAIOLO
City Clerk